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No. 2.

COPY of a DESPATCH from Governor General Sir CHARLES FITZROY to the
Right Hon. Sir JOHN S. PAKINGTon, Bart.

(No. 29.)

Government House, Sydney, February 22, 1853.
(Received July 4, 1853)


I HAVE the honour to transmit the copy of a Despatch addressed to me by Lieut.-Governor Latrobe, forwarding an extract from a Despatch which he had then recently addressed to yourself, and containing a detailed statement of the views which had induced him to bring the entire question of the issue of pastoral leases in the colony of Victoria under the consideration of Her Majesty's Government, with the object of obtaining a revision of Her Majesty's Order in Council of the 9th March 1847.

Right Hon. Sir J. S. Pakington,

I have, &c.

(Signed) C. A. FITZROY.

2. Mr. Latrobe, it will be perceived, has made this communication to me in order to afford me the opportunity of putting you in possession of my own views as to the bearing on the interests of this colony of any modification of the Order in Council, such as he has felt it his duty to advocate.

3. Having brought this subject under the consideration of my Executive Council, I have now the honour to transmit a copy of the minutes of the proceedings 9th Nov. 1852. of that Board, showing the result of our deliberations, from which you will 1st February 1853. observe that, for the reasons which are fully set forth therein, and in which I entirely concur, the council cannot coincide in the views entertained by Mr. Latrobe, or deem it advisable or expedient that the faith of the Crown, which has been pledged to the lessees of the Crown lands, should be in any way broken, however desirable it might have been that the Order in Council, when originally framed, had recognised some of the principles now contended for by Mr. Latrobe.

Enclosure 1 in No. 2.

Government Offices, Melbourne, October 7, 1852.

I RECENTLY found it necessary to bring the whole question of the proposed issue of
leases to the occupants of Crown lands for pastoral purposes, under the Orders in Council,
in all its bearings fully under the consideration of Her Majesty's Government; and I now
take an opportunity of placing before your Excellency a summary of the views and
opinions I have considered it my duty to lay before Her Majesty's Government in that

2. After adverting in detail to the various instructions and regulations issued by the Colonial Government, with a view to the carrying out of the Orders in Council of the 7th November 1847, and to the character of the various measures taken, or proposed to be adopted to this end, in the interval between July 1847 and the 28th June 1850, I proceeded to call attention to the claims advanced by the occupants of Crown land for pastoral purposes beyond the settled district on the strength of the Orders in Council even before the issue of leases, and the limitation of the powers of Government with respect to the sale of the waste lands of the Crown consequent thereupon.

3. The first case, that of Messrs. Moore and Griffith, which brought this subject prominently under consideration, I reported at length. The cases of Messrs. W. I. T. Clarke and Mr. Bingley were also adverted to, and I called attention to the final conclusion arrived at, namely, that until leases were issued no further measures could be taken with a view to the sale of any lands which had not been duly reserved from lease under the 9th section of Chapter II of the Orders in Council; and, as a consequence, viewing the obstacles which stood in the way of a prompt issue of lease, the selection of these reserves was an object of pressing necessity.

4. I further pointed out, incidentally, that while the issue of the Government regulations of the 28th June 1850, considerately extended to the licensed occupants of Crown lands beyond the settled districts the pre-emptive right of purchase of certain portions of their runs, no additional facility was afforded in the disposal of land to the public, though a very important concession was made to the squatter, inasmuch as he was thereby enabled to exercise a privilege which, in strictness, he could only claim after the actual issue of lease.


No. 2.

5. The obstacles which stood in the way of a prompt selection and definition of the lands to be reserved from lease were next adverted to.

7th Oct. 1852.

Encl. 1 in No. 2.


Encl. 2 in No. 2.

6. To show further the doubts that arose subsequently with respect to the power possessed by Government of reserving from lease lands of any extent for agricultural purposes, or the expediency of doing so even if the power were undoubted, I transmitted a selection from the correspondence which arose in consequence of the proposed sale of suburban lands in the vicinity of Kyneton, the new township on the main North road (case of Messrs. Booth, and Argyle, and Jeffreys,) including the opinion of the Attorney and SolicitorGenerals, on the reference made to your Excellency, upon this question of the lessee's right of pre-emption at a fair value: and a copy of my reply thereto, requesting a reconsideration of the whole matter; together with the answer from the Colonial Secretary leaving the subject to be disposed of by the New Government of Victoria on the approaching separation of the provinces.

7. I likewise enclosed the opinions of the law officers of the Crown in this colony upon the question of the powers of Government in reference to the disposal of lands in the settled, intermediate, and unsettled districts respectively, which have been reserved from lease, without interference of a pre-emptive right of purchase on the part of the original licencee which had been called in question.

8. Having thus brought under notice the character of the claims of the applicants for lease before the issue of lease, I next set forth what they held to be their privileges, and the powers of the Crown in bringing forward land for sale after issue, and the difficulties which attended a satisfactory adjustment of the question at issue, viewing the different interpretations put by the law officers of the two colonies upon the meaning and intent of the Orders in Council.

9. I then called attention to the circumstances which have brought the whole question prominently forward at this time, and have made it the subject of anxious and almost fierce discussion throughout this community; and after expressing my own opinion as to what might be held to be the respective rights of the Crown and the claimants for leases, I showed the influence which the gold discoveries had exercised upon this, among other public questions.

10. It also became my duty to transmit certain votes and addresses from the Legislative Council upon this all-absorbing question, with which your Excellency is doubtless acquainted through the medium of the usual file of votes and proceedings of that body; by which source of information your Excellency is also probably aware that in my reply to the legislature, I expressed my intention of referring the whole question to the decision of Her Majesty's Government, conceding in the mean time to the lessees the purchase, under their pre-emptive right, of such sections as might contain their homesteads and principal improvements, leaving the right of the present licencee to exclusive occupation to remain unquestioned, and proceeding with the formation of reserves.

11. The concluding portion of my Despatch ran thus: —


[Here follows an extract from Lieutenant-Governor Latrobe's Despatch* to the Secretary of State, being paragraphs Nos. 63 to 85 inclusive.]

12. I have thus placed your Excellency in possession of the general contents of my Despatch to the Secretary of State, and of the views and opinions I have therein expressed, in order that, should your Excellency consider it advisable, Her Majesty's Government may be made aware of the impressions entertained by your Excellency upon the general question, and also upon the probable bearing of any modification of the Orders in Council, such as I have felt it my duty to advocate, upon the interests of the colonists of New South Wales.

His Excellency Sir Charles A. Fitzroy,


I have, &c.

(Signed) C. J. LATROBE, Lieut.-Governor.

Enclosure 2 in No. 2.

PROCEEDINGS of the EXECUTIVE COUNCIL with respect to a suggested revision of the
Order in Council of 9th March 1847, relating to the occupation of waste lands.

Extract from Minute No. 52/42, dated 9th November, 1853.


His Excellency the Governor General.

The Honourable the Commander of the Forces.

The Honourable the Colonial Secretary.

The Honourable the Attorney General.
The Honourable the Colonial Treasurer.

His Excellency the Governor General lays before the Council a Despatch from the Lieutenant-Governor of Victoria, containing a detailed statement of the views which

This Despatch will be found already printed in full for Parliament at page 97 of tive to Crown lands, Australia, presented by Her Majesty's command, May 6, 1853.



have induced him to bring the entire question of the issue of pastoral leases in that colony under the attention of Her Majesty's Government, with a view to the revision of the Queen's Order in Council of 9th March, 1847, a step which he now reports to the Governor General, in order that his Excellency may, if he see fit, place Her Majesty's Government in possession of his views as to the bearing on the interests of this colony, of any modification of the Order in Council, such as Lieutenant-Governor La Trobe has felt it his duty to advocate.

2. After deliberating on the questions raised in this Despatch, the Council defer its further consideration till a further day.


Clerk of the Council.

Enclosure 3 in No. 2.

PROCEEDINGS of the EXECUTIVE COUNCIL with respect to a suggested revision of the
Order in Council of 9th March 1847, relating to the occupation of Waste Lands.

Extract from Minute No. 53/6, Dated 1st February 1853.


His Excellency the Governor General.

The Honourable the Commander of the Forces.

The Honourable the Colonial Secretary.

The Honourable the Attorney General.
The Honourable the Colonial Treasurer.
The Honourable the Auditor General.

REFERRING to the proceedings of the 9th November last, the Council resume the consideration of the Despatch from His Excellency the Lieutenant-Governor of Victoria, having reference to the proposed revision of the Queen's Order in Council of 9th March 1847, regulating the occupation of the waste lands of the Crown in the Australian colonies.

2. In the arguments employed by Lieutenant-Governor Latrobe, in his representation to the Secretary of State on this subject, it is assumed that the principal objects of the Order in Council of 9th March 1847, were—

(1.) To secure the legal and regular occupation of the waste lands of the Crown in these colonies, which were shown to be eminently suited to pastoral purposes, and were not likely to be required for many years for permanent and general settlement.

(2.) To afford the legal occupant that degree of security in his temporary possession which might be just and reasonable, until the lands should be required for other purposes; and

(3.) That every possible encouragement might be extended to the production of an export of such great importance to the mother country as the wool of the Australian colonies has now become, consistently with that regard due to other interests to which, as the population increased, it could not but be held to be subordinate; and it is strongly urged that the provisions of that Order in Council are unsuited to the present state of things in Victoria.

3. Lieutenant-Governor Latrobe's observations and suggestions have reference exclusively to the colony of Victoria, whilst the remarks which this council feel called upon to make must be understood to be applicable chiefly to New South Wales.

4. The feature in the Order in Council against which Governor Latrobe's objections are mainly directed, is the extent of the pre-emptive right conferred on the future lessees of the waste lands, a right which they have asserted and been permitted to exercise even before the issue of the leases. He justifies the granting of a power of pre-emption to the extent of two or three sections in each case to secure the homestead, and such additional land as might be necessary for the support of the establishment. Beyond this, he conceives it was not desirable to extend the privilege, and he asserts that the recipients of the boon never anticipated or even desired more, until the Order in Council ceded more to them.

5. Lieutenant Governor Latrobe next alludes to the doubts entertained by himself and his law advisers as to the power of his government, under the 9th section of cap. II. of the Order in Council, to make reserves in the manner pursued in this colony, a power which, properly exercised, would tend to obviate in so ne measure the evil consequences otherwise resulting to the public from the operation of the general pre-emptive right over the entire run, and after adverting to the disadvantages attending the sale of lands to the lessees of Crown lands by valuation, he proceeds to recommend a revision of the Oraer in Council of 9th March 1847, the alterations which he desires to have effected being to the effect following:

(1.) In the first place, he would have the pre-emptive right created by that order wholly extinguished, except in so far as it might be necessary for securing the homesteads as above mentioned, and then he would have it exercised under such rules of general


Encl. 3 in No. 2.


application and further special consideration in each case as the Lieut.-Governor and Executive Council may prescribe. If the Order in Council, when properly interpreted, is seen to have given to the stockholder rights which cannot now be justly taken away, he would have them compensated for the loss; but at every risk he would extinguish the general right of pre-emption.

(2.) Beyond the extent of land required to secure and support the homestead as already mentioned, the whole of the land comprised within a pastoral run should be sold by auction, and in no other way, whether at the instance of the lessee or of any other person, and the right of the Government to offer for sale, whensoever it saw fit, any Crown lands whatever other than the homesteads before described, should by placed beyond all doubt.

(3.) In lieu of the system laid down in the 2d and 3rd sections of cap. ii. of the Order in Council for assessing the grazing capabilities of runs, Lieut.-Governor Latrobe would have the runs made chargeable with the payment of rent according to the stock pastured on them, to be ascertained by returns verified on oath in the manner pursued in the collection of the assessment levied on live stock pastured beyond the settled districts under the provisions of the local Act 11 Victoria, No. 18., now expired.

(4.) Finally he adverts to the impossibility of measuring all the runs within any reasonable time, so as to admit of the insertion in the leases of descriptions which would satisfy the requirements of the law; and he therefore suggests that the necessity for issuing leases should be dispensed with in those cases where proper descriptions cannot readily be procured, and that instead thereof, the occupants of the runs should be permitted to continue in possession under the present system of licenses for the term the lease would have to run, and on the same conditions in all respects, as if leases had issued.

(6.) If the matters embraced in Governor Latrobe's Despatch were really open questions on which the Queen's Government were now for the first time about to legislate, the council would not hesitate to subscribe to many of the arguments adduced in that Despatch. But whatever objections may be incident to the provisions of the Order in Council of the 9th March 1847, and especially to that particular feature so strongly deprecated by Governor Latrobe, namely, the extent of the pre-emptive right conferred on the lessees of Crown lands and its injurious operation on the interests of the public at large, this council cannot but regard any attempt to extinguish or materially to qualify that right as incompatible with the preservation of the faith of the Crown, pledged to the licensed occupants of the pastoral runs by the formal promulgation of the regulations contained in that order. It is true Governor Latrobe speaks of compensating the claimants of leases for the extinguishment of their pre-emptive right, but he has not made any specific proposition as to the mode of granting this compensation, or of calculating the compensation to be granted, and this council is not prepared to suggest any satisfactory method for effecting these objects.

(7.) Whilst, therefore, the council acknowledge that it might have been preferable for the public interests if some of the principles contended for by Governor Latrobe had been recognised in the framing of the land orders, they nevertheless feel precluded, for the reason already alleged, from discussing the propriety of introducing the alterations which he advocates. That reason operates with the council in an especial manner in regard to the first two of Governor Latrobe's propositions, which, taken together, would go to extinguish the pre-emptive right conferred on the claimants of leases.

(8.) This seems the fitting place to allude to a clause contained in the Order in Council itself, which provides in some measure a remedy for the evils apprehended from the exclusive character of the pre-emptive right conferred by the Order in Council, a provision which it is possible has escaped Governor Latrobe's notice as he nowhere refers to it in his Despatch. In the 16 section of cap. II. of the Order in Council the right of renewal of pastoral leases is made subject to the following proviso: "And provided nevertheless that "the boundaries of the different classes of lands shall not in the mean while have been so "far extended as to bring the said run within the class of settled lands; and pro"vided, also, that if brought within the class of intermediate lands, the lessee shall

only obtain a renewed lease of the said run under the rules herein-after laid down as applicable to that class of lands." This proviso not less than the definition of the unsettled districts contained in the 4th section of cap I. of the Order in Council, clearly points to the power (if not the intention) on the part of Her Majesty's Government of extending the limits of the settled and intermediate lands, as circumstances might require, during the currency of the leases first to be issued, so that the evils arising from a too extensive pre-emption cannot, or at least need not, exist after the expiry of the first leases, the terms of which, have in this colony already commenced to run. The council do not overlook the fact that Governor Latrobe's objections have reference to the immediate wants of the people of Victoria. But having regard to the large extent of territory in that colony which has been included within the intermediate class of lands, and to the peculiar condition attaching to those lands which renders any part of the run liable to be offered for sale by auction at the expiration of each successive year of the term of the lease, upon sixty days notice being given to the lessee, the council are scarcely prepared to hear that the inconvenience to the public from the existence of the pre-emptive right as it now stands, is so great as it is depicted to be in Governor Latrobe's Despatch.

(9.) It only remains to notice the other two propositions contained in this Despatch,

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namely the suggested alterations in the mode of assessing the grazing capabilities of
pastoral runs, and the dispensing with measured descriptions in certain cases.
council do not discover anything in the arguments used by Governor Latrobe to convince
them that the mode of assessment prescribed by the Order in Council is not preferable to
that which he desires to have substituted for it. Apart from the trouble and delay
incident to the latter mode and its liability to incorrect returns, the council consider that
it is more equitable that the rent to be paid by the lessee should be proportioned rather
to the ascertained grazing capabilities of the land occupied by him than to the quantity of
stock which he may choose to place upon it. The tendency of the latter system is to
keep the runs inadequately stocked, and thus to inflict a two-fold injustice on the public
by locking up large tracts of land which, under a different system, would not only be
more beneficially occupied, but would yield a much larger revenue. It is open also to
this further objection that it weakens the inducement on the part of the lessee to improve
the capabilities of his run by artificial means.

(10.) Neither can the council concur with Governor Latrobe in the views which he has
expressed with respect to the measurement of runs. This question in its general bearings
has been the subject of frequent and serious consideration with this council, and the
result has been a conviction that in whatever light regarded, it is the duty not less than
the interest of the Government, to issue leases for terms of years, on none but properly
measured descriptions of the lands, such as would satisfy the requirements of the law.
There can be no doubt that the preparation of measured descriptions of all the pastoral
runs in either colony is a work of great magnitude necessarily involving much delay; but
the council deem it more advisable in New South Wales at least, where very considerable
progress has been made in the survey of the pastoral districts, and the measurement of
individual runs, that the original intention of issuing leases should be perfected when
practicable, than that the Order in Council should be partially carried into effect by the
issue of valid leases for a certain portion of the pastoral runs, leaving the remainder to be
held by a different tenure.

(11.) It has been stated above that the terms of the leases about to be granted have already commenced to run, and it is only necessary to add that notwithstanding the delay consequent on the necessity for measuring the runs previously to the issue of leases, the claimants are virtually in the enjoyment of all or nearly all the advantages intended to be conferred on them; and that it is the government rather than the future lessees who are interested in the speedy completion of the surveys.


I have, &c.

Clerk of the Council,

No. 3.

COPY of a DESPATCH from Governor General Sir CHARLES FITZROY to the
Right Hon. Sir JOHN S. PAKINGTON, Bart.

Government House, Sydney, April 5, 1853.
(Received August 19, 1863,)


3. But, even if no objection should exist to this proposal, it is not likely that a sufficient number of men could be spared from the corps of sappers and miners to supply all the wants of the surveying parties; and it has therefore further occurred to me to suggest that the Land and Emigration Commissioners should be requested to send out such number of young unmarried men as will supply the deficiency, and that these men should come out under an engagement to

No. 3.

(No 55.)

(Answered No. 121, 15th September 1853, p. 19.)
THE great, and in many instances insurmountable, difficulties which
have been for some time past experienced, both within and beyond the settled
districts of this colony, by the officers of the Survey Department in obtaining
the services of a sufficient number of men to enable them to carry on their field
operations, have become so imperious to the interests of the Government and of
the public that, unless they can be overcome, the field services of many of the
surveyors must be entirely suspended; and I have therefore deemed it my duty
to turn my serious attention to the practicability of supplying the surveying
parties with men from home.

2. I believe that in some of the adjoining colonies detachments from the Van Diemen's
corps of sappers and miners have been sent out from England for employment Land and South
in the Survey Department; and it has occurred to me that there would perhaps Australia.
be no objection to extend the benefit of this arrangement to this colony, with
the understanding of course that provision would be made for their payment at
such a rate as may be decided upon by the proper authorities at home from

colonial funds.

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